The EEOC has recently filed several suits targeted so-called “no fault” attendance policies. See e.g., E.E.O.C. v. Lifecare Medical Services, Inc., 5:13-cv-01447 (N.D. Ohio) (Complaint filed July 1, 2013, alleging “Defendant has had and continues to have an attendance policy which provides for progressive discipline, up to and including discharge, for all absences. Defendant’s policy has no exceptions for individuals with disabilities whose absences are caused by their disabilities and the policy does not have any provision for reasonable accommodation of such individuals covered under the ADA. Defendant’s application of its attendance policy to [Plaintiff] denied him leave as a reasonable accommodation, in violation of the ADA”); E.E.O.C. v. CTI, Inc., 4:13-cv- 01279 (D. Ariz.) (Complaint filed on September 30, 2013, alleging defendant’s “maximum leave policy” violates the ADA because, under defendant’s “maximum leave policy, as administered, before discharging employees with disabilities, defendant . . . does not initiate the interactive process to identify the precise limitations resulting from their disabilities and potential reasonable accommodations that could overcome those limitations); E.E.O.C. v. Interstate Distributor Company, 1:12-cv-02591 (D. Colorado) (Complaint filed September 28, 2012, alleging defendant employer maintained a maximum leave policy requiring employees to return to work within 12 weeks or be terminated and did not offer accommodations to the policy for disabled employees); See also E.E.O.C. v. Vicksburg Healthcare, LLC, 5:13-cv-00189 (S. D. Miss.) (Complaint filed on September 30, 2013, alleging defendant terminated employee at the end of her 12-week FMLA leave without first engaging in the interactive process); E.E.O.C. v. AR&T Corp., 1:12-cv-00402 (S.D. Indiana) (Complaint filed March 29, 2012, alleging defendant-employer improperly discharged employee under attendance policy); E.E.O.C. v. GGNSC Administrative Services, LLC, 2:12-cv-00238 (E.D. Wis.) (Complaint filed March 12, 2012, alleging plaintiff was not provided additional leave as a reasonable accommodation).
To date, no court has found a “no fault” attendance policy illegal per se. However, courts repeatedly warn employers with “no fault” attendance policies they are required to consider reasonable accommodation to the policy, e.g., demonstrating the employer engaged in an individualized, interactive process to consider modifying the leave policy to extend leave to a reasonable time for a qualified, disabled employee to return to work. So far the case law provides employers are not required to extend the leave indefinitely, e.g., if an employee is unable to provide an estimated date he or she could return to work.
What is a “No Fault” Attendance Policy?
Typically, a “no fault” attendance policy provides an employee with a certain amount of leave (e.g., three, six or twelve months), and, at the end of the time period, mandates termination regardless of the reason for the absence. Here is a sample “no fault” attendance policy:
A regular employee who becomes ill or injured and whose claim of illness or injury is supported by satisfactory medical evidence will be granted a leave of absence to cover the period of such illness or injury up to a maximum of six months. Satisfactory medical evidence, and by consent of the Company, such a leave may be extended an additional six months.
* * * *
Upon the expiration of a leave of absence, the employee’s employment with [Company] will be terminated.
Gantt v. Wilson Sporting Goods Company, 143 F.3d 1042, 1045 (6th Cir. 1998) (Emphasis added).
Here is another sample, entitled the “12-Month Policy” by the employer:
The following will result in your separation from employment; and will end your associate service when you . . . [a]re not actively employed by [Defendant] for any reason for twelve (12) consecutive months unless on approved leave of absence due to an occupational injury or illness, serving the armed forces, on an educational leave, or laid off.
White v. Honda of America Mfg., Inc., 191 F.Supp.2d 933, 938 (S.D. Ohio 2002
Interestingly, the Fifth Circuit has distinguished between a “no fault” policy and a policy which limits leave but does not mandate termination at the end of the leave period. In Weber Aircraft, Inc. v. Intern. Broth. Of Teamsters Local 767 ALF-CIO, 33 Fed. Appx. 706, 2002 WL 433147, at *1 (5th Cir. March 8, 2002), the Fifth Circuit determined the policy contained in the collective bargaining agreement was not a “no fault” attendance policy because it does “not by its own terms state that discharge is automatic.” Weber Aircraft, 2002 WL 433147 at *1.
E.E.O.C. Position on “No Fault” Attendance Policies
The EEOC has not taken the position in its guidances or published directives that a “no fault” attendance policy is per se illegal. Instead, the EEOC’s position has seemed to be “no fault” attendance policies cannot be applied without exception and, instead, must be modified to accommodate disabled employees who seek an accommodation.
The EEOC addresses “no fault” attendance policies in its EEOC Enforcement Guidance on Reasonable Accommodations and Undue Hardship, No. 915.002 (10/17/02):
17. May an employer apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period?
No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation.
See also Gibson v. Lafayette Manor, Inc., 2007 WL 951473, *7 (W.D. Pa. March 27, 2007) (citing EEOC Enforcement Guidance).
Appellate Court Cases Analyzing “No Fault” Attendance Policies
Courts generally uphold a “no fault” attendance policy as non-discriminatory. See Gantt v. Wilson Sporting Goods Company, 143 F.3d 1042 (6th Cir. 1998); Melange v. City of Center Line, 482 Fed. Appx. 81, 2012 WL 1959319, * 4 (6th Cir. 2012); Kolovos v. Sheahan, 1999 WL 1101919, at *7 (N.D. Ill. Nov. 30, 1999). However, it is clear the ADA obligates an employer to consider modification of or exceptions to the “no fault” attendance policy as reasonable accommodation for disabled employees. However, the disabled employee must request such an accommodation (extension of the leave or exception to automatic termination); an employee’s failure to request this as an accommodation (or any accommodation) can be fatal to a claim. Gantt, 143 F.3d at 1047; Melange, 2012 WL 1959319, at * 4; E.E.O.C. v. Sisters of Providence Hospital, 1999 WL 691164, at *1 (9th Cir. 1999).
Employer Loses When It Fails to Accommodate a “No Fault” Attendance Policy
First Circuit Case
In Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000), the First Circuit rejected an employer’s reliance on its “no fault” attendance policy mandating termination after one year of medical leave. The plaintiff had taken leave for treatment of breast cancer. The defendant-employer deemed plaintiff’s disability to have begun in March 1995, when plaintiff underwent surgery to remove a nodule in her neck; following surgery, plaintiff received short-term disability benefits through March 19, 1996, and thereafter began receiving long-term disability benefits. On April 9, 1996, plaintiff’s doctors certified plaintiff would be able to return to work on July 30, 1996. However, on June 10, 1996, the employer’s human resources director notified plaintiff the company was terminating her because her one-year period for job reservation had elapsed as of March 1996. Plaintiff asked for her job to be reserved until her release date to return to work (July 30th), to no avail. Plaintiff was ultimately released to return to work on August 22, 1996.
Plaintiff sued the employer for failure to accommodate her disability. The employer took the position plaintiff was terminated because her one year of leave had expired; the company “embrac[ed] a per se rule that any leave beyond its one-year reservation period was too long.” Id., at 649. The court held the Plaintiff’s requested accommodation of extending the one-year leave procedure by less than two months was reasonable; further, the employer had no evidence such brief extension would create an undue hardship. The Court stated: “The company’s apparent position that the ADA can never impose an obligation on a company to grant an accommodation beyond the leave allowed under the company’s own leave policy is flatly wrong under our precedent.” Id. at 646. The Court ruled there was no undue burden to the employer because: (1) plaintiff’s leave was unpaid leave; (2) plaintiff’s essential job functions were fulfilled satisfactorily by temporary employees; (3) there was no financial burden to the employer; and (4) there was no business pressure to fill plaintiff’s slot with another permanent employee, as evidenced by the fact that the employer never did fill the slot. The Court held in this situation, “retaining the ailing employee’s slot while granting unsalaried leave may be a reasonable accommodation required by the ADA.” Id. at 650. The Court then noted other facts may render a request for extended leave unreasonable, e.g., where the employee gave no indication as to when she might be able to return to work and instead demanded the job be held open indefinitely; where the employee’s absences from work were erratic and unexplained; and where, upon the employee’s return to work, she would be unqualified. Id.
Eleventh Circuit Case
In Holly v. Clairson Industries, L.L.C., 492 F.3d 1247 (11th Cir. 2007), the employer instituted a “no fault” attendance policy, wherein each tardy, partial absence or absence from work counted as either “one half occurrence” or an “occurrence”; the policy provided for a progressive series of verbal and written warnings, and immediate termination upon the accrual of nine “occurrences” within a one-year period. The policy also specifically provided employees with “American with Disability Act situations are not exempt from this policy.”
Plaintiff, a paraplegic, was terminated under the policy because of his tardiness. Plaintiff argued the employer failed to reasonably accommodate his disability by modifying the no-fault attendance policy; plaintiff argued he should have been allowed to occasionally clock in to work late and make up any lost time during breaks or overtime because his disability often caused him to be tardy. Further, plaintiff argued he had been allowed this type of accommodation before the “no fault” policy was instituted. The Eleventh Circuit agreed, finding based upon the testimony of plaintiff’s supervisors, strict punctuality was not an “essential” function of plaintiff’s job. Further, the employer should have considered plaintiff’s request for an accommodation and analyzed whether it would have presented an undue hardship. The Court held the employer was “not insulated from liability under the ADA by treating its non-disabled employees exactly the same as its disabled employees. . . Allowing uniformly applied, disability-neutral policies to trump the ADA requirement of reasonable accommodations would utterly eviscerate the ADA requirement.”
District Court Case
See also, Shim v. United Air Lines, Inc., 2012 WL 6742523 (D. Hawaii 2012) (citing employer’s “no fault” leave of absence policy stating, “Failure to return to active duty before the termination of your three (3) year Non-Occupational Medical Leave of Absence will result in your administrative separation from the Company. “ Questions of fact regarding whether plaintiff was in violation of the LOA policy and whether an extension to the LOA policy as an accommodation would have caused an “undue hardship” to the employer prevented the Court from entering summary judgment in the employer’s favor.)
As of now, “no fault” attendance policies are legal and permissible, but as a “best practice” (and to avoid EEOC scrutiny), an Employer should:
- Modify the Policy by removing a mandatory termination provision and affirmatively stating in appropriate situations the company will consider whether an extended period of medical leave is a reasonable accommodation; and,
- Be Prepared to engage in the interactive process and offer reasonable accommodation to the policy for qualified, disabled employees.